The New Parts of the Alito Majority

Dashed-Off Daily Dobbs Update #1 of ?

The Supreme Court has overturned its abortion precedents, allowing states to protect the unborn for the first time in nearly 50 years. While there is still a great deal of work to be done, this decision represents the largest single expansion of human rights in the United States of America since the 13th Amendment.

There is so much to read and so much to write (and some of us have day jobs!), but I haven’t seen this reprinted anywhere else yet, so I’ll post it quick and come back later.

Justice Alito’s draft majority opinion is now an actual majority opinion. Most of it remained unchanged, so I won’t go over it again. I have done that plenty on this blog already (and you can peruse the archives if you want my analysis of the original draft!).

However, aside from some interesting new footnotes, Alito added two important sections in response to the concurrence and dissent. I reproduce those sections here, without further comment (in part because they say all that needs to be said), because I haven’t seen them spelled out clearly elsewhere.

First, on stare decisis, deep-rootedness, and the dissent’s dishonest “balancing” test:

II. D. 1.

The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a “deeply rooted’” one, “‘in this Nation’s history and tradition.” Glucksberg, 521 U.S., at 721; see post, at 12-14 Goint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.). The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise. Compare post, at 12-14, n. 2, with supra, at 15-16, and n. 23. Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening; that the 19th century saw a trend toward criminalization of pre-quickening abortions; that by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy; that by the late 1950s at least 46 States prohibited abortion “however and whenever performed” except if necessary to save “the life of the mother,” Roe, 410 U. S., at 139; and that when Roe was decided in 1973 similar statutes were still in effect in 30 States. Compare post, at 12-14, nn. 2-8, with supra, at 23-25, and nn. 33-34.

The dissent’s failure to engage with this long tradition is devastating to its position. We have held that the “established method of substantive-due-process analysis” requires that an unenumerated right be “‘deeply rooted in this Nation’s history and tradition’” before it can be recognized as a component of the “liberty” protected in the Due Process Clause. Glucksberg, 521 U.S., at 721; cf. Timbs, 586 U.S., at ___ (slip op., at 7). But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy.

The dissent attempts to obscure this failure by misrepresenting our application of Glucksberg. The dissent suggests that we have focused only on “the legal status of abortion in the 19th century,” post, at 26, but our review of this Nation’s tradition extends well past that period. As explained, for more than a century after 1868—including “another half-century” after women gained the constitutional right to vote in 1920, see post, at 15; Amdt. 19—it was firmly established that laws prohibiting abortion like the Texas law at issue in Roe were permissible exercises of state regulatory authority. And today, another half century later, more than half of the States have asked us to overrule Roe and Casey. The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition.

II. D. 2.

Because the dissent cannot argue that the abortion right is rooted in this Nation’s history and tradition, it contends that the “constitutional tradition” is “not captured whole at a single moment,” and that its “meaning gains content from the long sweep of our history and from successive judicial precedents.” Post, at 18 (internal quotation marks omitted). This vague formulation imposes no clear restraints on what Justice White called the “exercise of raw judicial power,” Roe, 410 U.S., at 222 (dissenting opinion), and while the dissent claims that its standard “does not mean anything goes,” post, at 17, any real restraints are hard to discern.

The largely limitless reach of the dissenters’ standard is illustrated by the way they apply it here. First, if the “long sweep of history” imposes any restraint on the recognition of unenumerated rights, then Roe was surely wrong, since abortion was never allowed (except to save the life of the mother) in a majority of States for over 100 years before that decision was handed down. Second, it is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.” See supra, at 32.

So without support in history or relevant precedent, Roe’s reasoning cannot be defended even under the dissent’s proposed test, and the dissent is forced to rely solely on the fact that a constitutional right to abortion was recognized in Roe and later decisions that accepted Roe’s interpretation. Under the doctrine of stare decisis, those precedents are entitled to careful and respectful consideration, and we engage in that analysis below. But as the Court has reiterated time and time again, adherence to precedent is not “‘an inexorable command.’” Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2015). There are occasions when past decisions should be overruled, and as we will explain, this is one of them.

II. D. 3.

The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance.

That view is evident throughout the dissent. The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State’s interest in protecting prenatal life. The dissent repeatedly praises the “balance,” post, at 2, 6, 8, 10, 12, that the viability line strikes between a woman’s liberty interest and the State’s interest in prenatal life. But for reasons we discuss later, see infra, at 50-54, 55-56, and given in the opinion of THE CHIEF JUSTICE, post, at 2-5 (opinion concurring in judgment), the viability line makes no sense. It was not adequately justified in Roe, and the dissent does not even try to defend it today. Nor does it identify any other point in a pregnancy after which a State is permitted to prohibit the destruction of a fetus.

Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that “‘theory of life.’” Post, at 8.

And later, on stare decisis (again), the other substantive due process cases, and Chief Justice Dumbfart Roberts’ idiotic middle way. (I accord the dissenters a certain degree of respect, because at least they believe the terrible things they are writing. Roberts doesn’t believe what he’s writing at all. He is no longer even pretending to operate as an Article III judge rather than a dictator.)

V.A.1.

The dissent argues that we have “abandon[ed]” stare decisis, post, at 30, but we have done no such thing, and it is the dissent’s understanding of stare decisis that breaks with tradition. The dissent’s foundational contention is that the Court should never (or perhaps almost never) overrule an egregiously wrong constitutional precedent unless the Court can “poin[t] to major legal or factual changes undermining [the] decision’s original basis.” Post, at 37. To support this contention, the dissent claims that Brown v. Board of Education, 347 U.S. 488, and other landmark cases overruling prior precedents “responded to changed law and to changed facts and attitudes that had taken hold throughout society.” Post, at 43. The unmistakable implication of this argument is that only the passage of time and new developments justified those decisions. Recognition that the cases they overruled were egregiously wrong on the day they were handed down was not enough.

The Court has never adopted this strange new version of stare decisis—and with good reason. Does the dissent really maintain that overruling Plessy was not justified until the country had experienced more than a half-century of state sanctioned segregation and generations of Black school children had suffered all its effects? Post, at 44-45.

Here is another example. On the dissent’s view, it must have been wrong for West Virginia Bd. of Ed. v. Barnette, 819 U.S. 624, to overrule Minersville School Dist. v. Gobitis, 310 U. S. 586, a bare three years after it was handed down. In both cases, children who were Jehovah’s Witnesses refused on religious grounds to salute the flag or recite the pledge of allegiance. The Barnette Court did not claim that its reexamination of the issue was prompted by any intervening legal or factual developments, so if the Court had followed the dissent’s new version of stare decisis, it would have been compelled to adhere to Gobitis and countenance continued First Amendment violations for some unspecified period.

Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong. When that happens, stare decisis is not a straitjacket. And indeed, the dissent eventually admits that a decision could “be overruled just because it is terribly wrong,” though the dissent does not explain when that would be so. Post, at 45.

V. A. 2.

Even if the dissent were correct in arguing that an egregiously wrong decision should (almost) never be overruled unless its mistake is later highlighted by “major legal or factual changes,” reexamination of Roe and Casey would be amply justified. We have already mentioned a number of post-Casey developments, see supra, at 33-34, 59-63, but the most profound change may be the failure of the Casey plurality’s call for “the contending sides” in the controversy about abortion “to end their national division,” 505 U. S., at 867. That has not happened, and there is no reason to think that another decision sticking with Roe would achieve what Casey could not.

The dissent, however, is undeterred. It contends that the “very controversy surrounding Roe and Casey” is an important stare decisis consideration that requires upholding those precedents. See post, at 55-57. The dissent characterizes Casey as a “precedent about precedent” that is permanently shielded from further evaluation under traditional stare decisis principles. See post, at 57. But as we have explained, Casey broke new ground when it treated the national controversy provoked by Roe as a ground for refusing to reconsider that decision, and no subsequent case has relied on that factor. Our decision today simply applies longstanding stare decisis factors instead of applying a version of the doctrine that seems to apply only in abortion cases.

V. A. 3.

Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. Post, at 4-5, 26-27, n. 8. But we have stated unequivocally that “[nJothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U.S., at 852. Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.” Supra, at 32. It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.

V. B. 1.

We now turn to the concurrence in the judgment, which reproves us for deciding whether Roe and Casey should be retained or overruled. That opinion (which for convenience we will call simply “the concurrence”) recommends a “more measured course,” which it defends based on what it claims is “a straightforward stare decisis analysis.” Post, at 1 (opinion of ROBERTS, C. J.). The concurrence would “leave for another day whether to reject any right to an abortion at all,” post, at 7, and would hold only that if the Constitution protects any such right, the right ends once women have had “a reasonable opportunity” to obtain an abortion, post, at 1. The concurrence does not specify what period of time is sufficient to provide such an opportunity, but it would hold that 15 weeks, the period allowed under Mississippi’s law, is enough—at least “absent rare circumstances.” Post, at 2, 10.

There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party. As we have recounted, both parties and the Solicitor General have urged us either to reaffirm or overrule Roe and Casey. See supra, at 4-5. And when the specific approach advanced by the concurrence was broached at oral argument, both respondents and the Solicitor General emphatically rejected it. Respondents’ counsel termed it “completely unworkable” and “less principled and less workable than viability.” Tr. of Oral Arg. 54. The Solicitor General argued that abandoning the viability line would leave courts and others with “no continued guidance.” Jd., at 101. What is more, the concurrence has not identified any of the more than 130 amicus briefs filed in this case that advocated its approach. The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[nJo party or amicus asked the Court to adopt.” Post, at 3.

V. B. 2.

The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach. The concurrence would “discar[d]” “the rule from Roe and Casey that a woman’s right to terminate her pregnancy extends up to the point that the fetus is regarded as ‘viable’ outside the womb.” Post, at 2. But this rule was a critical component of the holdings in Roe and Casey, and stare decisis is “a doctrine of preservation, not transformation,” Citizens United v. Federal Election Comm’n, 558 U.S. 310, 384 (2010) (ROBERTS, C.J., concurring). Therefore, a new rule that discards the viability rule cannot be defended on stare decisis grounds.

The concurrence concedes that its approach would “not be available” if “the rationale of Roe and Casey were inextricably entangled with and dependent upon the viability standard.” Post, at 7. But the concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent. Post, at 7-8. That is simply incorrect.

Roe’s trimester rule was expressly tied to viability, see 410 U.S., at 163-164, and viability played a critical role in later abortion decisions. For example, in Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, the Court reiterated Roe’s rule that a “State may regulate an abortion to protect the life of the fetus and even may proscribe abortion” at “the stage subsequent to viability.” 428 U.S., at 61 (emphasis added). The Court then rejected a challenge to Missouri’s definition of viability, holding that the State’s definition was consistent with Roe’s. 428 U.S., at 63-64. If viability was not an essential part of the rule adopted in Roe, the Court would have had no need to make that comparison.

The holding in Colautti v. Franklin, 439 U. S. 379, is even more instructive. In that case, the Court noted that prior cases had “stressed viability” and reiterated that “viability is the critical point” under Roe. 439 U.S., at 388-389. It then struck down Pennsylvania’s definition of viability, id., at 389-394, and it is hard to see how the Court could have done that if Roe’s discussion of viability was not part of its holding.

When the Court reconsidered Roe in Casey, it left no doubt about the importance of the viability rule. It described the rule as Roe’s “central holding,” 505 U. S., at 860, and repeatedly stated that the right it reaffirmed was “the right of the woman to choose to have an abortion before viability.” Id., at 846 (emphasis added). See id., at 871 (“The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce” (emphasis added)); id., at 872 (A “woman has a right to choose to terminate or continue her pregnancy before viability” (emphasis added)); id., at 879 (“[A] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability” (emphasis added)).

Our subsequent cases have continued to recognize the centrality of the viability rule. See Whole Women’s Health, 579 U.S., at 589-590 (“[A] provision of law is constitutionally invalid, if the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability’” (emphasis deleted and added)); id., at 627 (“[W]e now use ‘viability’ as the relevant point at which a State may begin limiting women’s access to abortion for reasons unrelated to maternal health” (emphasis added)). Cite as: 597 U.S. (2022) 75

Not only is the new rule proposed by the concurrence inconsistent with Casey’s unambiguous “language,” post, at 8, it is also contrary to the judgment in that case and later abortion cases. In Casey, the Court held that Pennsylvania’s spousal-notification provision was facially unconstitutional, not just that it was unconstitutional as applied to abortions sought prior to the time when a woman has had a reasonable opportunity to choose. See 505 U.S., at 887— 898. The same is true of Whole Women’s Health, which held that certain rules that required physicians performing abortions to have admitting privileges at a nearby hospital were facially unconstitutional because they placed “a substantial obstacle in the path of women seeking a previability abortion.” 579 U.S., at 591 (emphasis added).

For all these reasons, stare decisis cannot justify the new “reasonable opportunity” rule propounded by the concurrence. If that rule is to become the law of the land, it must stand on its own, but the concurrence makes no attempt to show that this rule represents a correct interpretation of the Constitution. The concurrence does not claim that the right to a reasonable opportunity to obtain an abortion is “deeply rooted in this Nation’s history and tradition’” and “implicit in the concept of ordered liberty.’” Glucksberg, 521 U.S., at 720-721. Nor does it propound any other theory that could show that the Constitution supports its new rule. And if the Constitution protects a woman’s right to obtain an abortion, the opinion does not explain why that right should end after the point at which all “reasonable” women will have decided whether to seek an abortion. While the concurrence is moved by a desire for judicial minimalism, “we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” Citizens United, 558 U. S., at 375 (ROBERTS, C. J., concurring). For the reasons that we have explained, the concurrence’s approach is not.

The concurrence would “leave for another day whether to reject any right to an abortion at all,” post, at 7, but “another day” would not be long in coming. Some States have set deadlines for obtaining an abortion that are shorter than Mississippi’s. See, e.g., Memphis Center for Reproductive Health v. Slatery, 14 F. 4th, at 414 (considering law with bans “at cascading intervals of two to three weeks” beginning at six weeks), reh’g en banc granted, 14 F. 4th 550 (CA6 2021). If we held only that Mississippi’s 15-week rule is constitutional, we would soon be called upon to pass on the constitutionality of a panoply of laws with shorter deadlines or no deadline at all. The “measured course” charted by the concurrence would be fraught with turmoil until the Court answered the question that the concurrence seeks to defer.

Even if the Court ultimately adopted the new rule suggested by the concurrence, we would be faced with the difficult problem of spelling out what it means. For example, if the period required to give women a “reasonable” opportunity to obtain an abortion were pegged, as the concurrence seems to suggest, at the point when a certain percentage of women make that choice, see post, at 1-2, 9-10, we would have to identify the relevant percentage. It would also be necessary to explain what the concurrence means when it refers to “rare circumstances” that might justify an exception. Post, at 10. And if this new right aims to give women a reasonable opportunity to get an abortion, it would be necessary to decide whether factors other than promptness in deciding might have a bearing on whether such an opportunity was available.

In sum, the concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay.

He goes on to conclude as he did before… but, this time, as the law of the land.

More later.